GOLDBERG: ‘Conservative’ interpretations of Obamacare

Word games from the bench hint at a wide possibility of outcomes

By Jonah Goldberg -
The Washington Times -
Friday, March 30, 2012

Supreme CourtJustice Ruth Bader Ginsburg likes the Indian Healthcare Improvement Act and other ingredients of the Patient Protection and Affordable Care Act, aka Obamacare. Why, she asked toward the end of three days of hearings, shouldn’t the court keep the good stuff in Obamacare and just dump the unconstitutional bits?

The court, she explained, is presented with “a choice between a wrecking operation … or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”

“Conservative” is a funny word. It can mean lots of different things. It reminds me of that line from G.K. Chesterton about the word “good.” “The word ‘good’ has many meanings,” he observed. “For example, if a man were to shoot his grandmother at a range of 500 yards, I should call him a good shot, but not necessarily a good man.”

Conservative can mean cautious in temperament - a man who wears belts and suspenders. Similarly, it sometimes suggests someone who’s averse to change. It also can refer to the political ideology or philosophy founded by Edmund Burke and popularized and Americanized by people including Barry Goldwater, Ronald Reagan, William F. Buckley and George F. Will.

Things can get complicated because these different meanings can overlap. Many strident liberals can have conservative temperaments, and many philosophical conservatives can have private lives that make a brothel during Fleet Week seem like a retirement-home chess club. Conservatives in America love the free market, which is the greatest source of change in human history. Liberals, alleged lovers of change and “progress,” often champion an agenda dedicated to preserving the past. Just consider how much of the Democratic Party’s rhetoric is dedicated to preserving a policy regime implemented by Franklin Roosevelt nearly 80 years ago.

You also can be conservative with respect to a given institution while being unconservative in every other respect. The most ardent communists in the Chinese or Cuban politburos are often described as conservatives. The same holds true for every left-wing institution in America: Someone has to be the “conservative” at PETA or Planned Parenthood - i.e., the person who is risk-averse when it comes to scarce resources or the group’s reputation.

Anyway, sometimes people like to play games with the indeterminacy of the word conservative in order to sell a liberal agenda. (In fairness, conservatives often do the same thing with “progressive.”)

Which brings us back to Justice Ginsburg. She would have people believe that if the court rules the individual mandate unconstitutional, the conservative thing to do would be to preserve the rest of Obamacare. She suggests that “wrecking” the whole thing would be an act of judicial activism, while “salvaging” it would be an act of conservation.

In other words, she’s playing games with the word. The Supreme Court is supposed to be a conservative institution in that it serves as a backstop for the excesses of the other branches. Political conservatives, by extension, argue that the court should defer to Congress, the most democratic branch, when constitutional issues are not at stake. Hence, liberals contend, a “conservative” court should take a scalpel to Obamacare, not an ax.

It sounds reasonable, but it isn’t. As Justices Antonin Scalia, Anthony M. Kennedy and John G. Roberts Jr. noted, if the court simply removes the requirement that everyone buy health insurance, they will be left with the task of essentially rewriting the act. That prospect caused Justice Scalia to exclaim, “What happened to the Eighth Amendment [barring cruel and unusual punishment]? You really want us to go through these 2,700 pages? … Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”

The conservative thing to do - and I don’t mean politically conservative - is to send the whole thing back to Congress and have it done right. Leaving aside the fact that Obamacare largely falls apart if you remove the mandate, it’s not the Supreme Court’s job to design our health care system from the scraps Congress dumps in its lap. What Justice Ginsburg proposes is akin to a student handing in a sloppy, error-filled term paper and the professor rewriting it so as to give the student an A.

Some liberals note that one option Congress could pursue would be to pass a far more left-wing piece of legislation that mandates a single-payer system, i.e., socialized medicine. That would - or at least could - be constitutional. That’s true: Congress could do that, and I’m sure Justice Ginsburg would be pleased if it did.

If that happened, the right and conservative thing for the court to do would be to let it happen.

Jonah Goldberg is editor-at-large of National Review Online, a visiting fellow at the American Enterprise Institute and the author of the forthcoming book “The Tyranny of Cliches” (Sentinel HC, May 2012).